BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH89241
Plaintiff )
) Citation No:S838304189
XL TIMBER, INC., )
Defendant ) OPINION AND ORDER
This case was tried in five sessions, December 19, 1989,
February 8, 1990, February 9, 1990, March 5, 1990, and March 6,
1990, in Salem, Oregon, before Referee Bruce D. Holtan. The
plaintiff, oregon Occupational Safety and Health Division (OR
OSHA), was represented by assistant attorney general Norman
Kelley. The defendant, XL Timber, Inc., was represented by
attorney Lloyd Helikson in the first session, and by attorney
George Goodman, during the remainder of the case. Bert Wright,
XL Timber's personnel and safety director, was present as the
employer representative throughout the proceedings. Business
Support Services recorded the entire proceedin~s.
ISSUES
OR OSHA issued Citation No. S838304189 on June 21, 1989, as a
result of an investigation of a fatal accident which occurred
April 12, 1989. The Citation alleged that the employer had
violated oregon Administrative Rule 437-80-105(1), described as
follows:

"Danger trees within reach of landings, haul roads,
rigging or work areas were not felled before regular work
operations began, and/or work was not arranged so that employees
were constantly in the clear.
(a) workmen were working in close proximity to numerous unstable
larger trees located in the buffer strip at 'he back of the
unit, resulting in the fatal injury of one of the
workmen."

The Citation classified the alleged violation as a "serious
repeat violation." This is because it involved a fatality [OAR
437-01-140(1)(c) and (d)], and because the employer had been
cited for a violation of the same Oregon Administrative Rule on
September 1, 1988. (Ex. 23.) The Citation fixed the penalty at
$5,000, based on a severity rating of "serious," a probability
rating of "high," and the allegation that it was a "repeat"
violation. OAR 437-01-145(5) and OAR 437-01-160.
The employer contends that no such violation occurred. If a
violation is found to have occurred, the employer contends that
the penalty is excessive. OR OSHA has the burden of proving by a
preponderance of the credible evidence that the violation noted
in the Citation occurred.
FINDINGS OF FACT
In early April 1989, an experienced crew of workmen began
logging a unit of timber for XL Timber, Inc., about 15 miles
north of Detroit, Oregon. Jim Miley, assistant logging
superintendent, was in charge of the operation. Steven Benham,
hook tender, was the supervisor of a six-man rigging crew. Mr.
Benham was a reliable, experienced, and safety conscious
employee.
on April 12, 1989, the crew held a "tailgate" safety meeting
before starting its eighth day of work. The topic of danger
trees, including snags, was discussed.
At approximately 9:30 a.m., Benham and Bob Richey, the rigging
slinger, were on the west side of the skyline, when the yarder
encountered a "hang-up" while attempting to "break out a turn."
The other four members of the rigging crew were on the east side
of the skyline setting chokers.
Richey had control of a communication device, called a "bug,"
and gave the "go-ahead" signal to the yarder. The increased
pressure to the skidding line pulled the skyline to the West
where it struck a live hemlock tree, approximately 106 feet
high. The hemlock was partially uprooted and began leaning
toward the West. Tom Miley was operating the yarder. He was not
in a position to see the "hang-up" because the road and landing
blocked his view.
Richey went up to the turn and unhooked two chokers to lighten
the load on the skyline. Then, Benham and Richey retreated to an
old "windfall" about 40 feet into the buffer zone and a little
over 100 feet from the base of the live hemlock. The
windfall was in a pocket of unstable snags. Benham and Richey
knew of the leaning hemlock and should have known of the
presence of the snags around them
Benham took control of the "bug" from Richey and gave the final
go-ahead signal to the yarder, intending to fall the live
hemlock with the skyline while breaking out the turn. The
skyline struck the hemlock and pulled it over. The hemlock
struck a snag, breaking the snag into at least three pieces.
Benham and Richey jumped off the windfall in an attempt to avoid
a large piece of the snag. Unfortunately, a piece of the snag
struck Benham on the head. He died shortly thereafter. Richey
was not injured.
The accident was caused by an isolated incident of poor
judgment in giving the final go-ahead signal. Benham and Richey
felt protected by a large, live tree between them and the
hemlock. They were not.
The employer's safety program was normally adequate to prevent
such accidents.
OPINION
OR OSHA must first establish by a preponderance of evidence
that the alleged violation occurred. This is accomplished by
producing evidence that all the elements of the violation, as
stated in the specific safety code section, were present. These
elements will be addressed separately.
First, there were numerous "danger trees" present in the area
of logging operations. A "danger tree" is defined as:

"A standing live or dead tree, including snags, with
evidence of deterioration or physical damage to the root system,
trunk, or stem. The degree and direction of the lean is also an
important fact when determining if a tree is dangerous." OAR
437-80-005(14).

The most unstable danger tree was the live hemlock that was
struck by the skyline two or three times. This hemlock was
partially uprooted and leaning in a generally westward direction
immediately before the final go-ahead signal was given by the
deceased. This fact was witnessed by Richey, Nissen, Forrester,
Potter, and the deceased. (Exs. 719, 20, 23, and 29.).
Other unstable danger trees were present in a pocket of snags
surrounding the old windfall on which Benham and Richey were
standing immediately before the hemlock was pulled over. These
snags qualified as danger trees because they showed signs of
deterioration. Several snags had broken tops; one snag was
obviously leaning (Exs. 715 and 8); one snag was fractured in
several places which resulted in an arc in its upper portion
(Ex. 715); and while most snags in the immediate area had tight
bark and normal color, one snag did not (Sparks' testimony).
Benham and Richey were standing a distance equal to, or a
little greater than, the length of the leaning hemlock from the
base of the leaning hemlock (Potter's testimony). Even in the
absence of snags, the deceased and Richey were in close
proximity to the leaning hemlock, itself a danger tree.
The snags were observed soon after the accident by safety
compliance officer (SCO) Starks, field safety supervisor Larrew,
and safety director Wright. SCO Starks took pictures of the
snags in the area of the accident. (Ex. 8.) Several eye
witnesses saw the deceased get struck by a piece of the broken
snag. (Exs. 719, 20, 22, and 29.)
The second element concerns whether employees were working in
close proximity to the danger trees. The uncontroverted evidence
shows that Benham and Richey were in close proximity. Regarding
the leaning and partially uprooted live hemlock, Benham and
Richey were standing a little over 100 feet from its base.
(Potter's testimony.) Regarding the snags, the windfall was in
the midst of several unstable snags. (Exs. 7, 8, Starks'
testimony, and Larrew's testimony.) (Although Benham and Richey
probably believed they were sheltered from danger by a large,
live tree, between them and the hemlock, this unfortunately
proved not to be true.)
The third element concerns whether the danger trees were in the
buffer strip at the back of the unit. The evidence on this
element is uncontroverted.
As a consequence, the work was not arranged so that employees
were "constantly in the clear."
The fourth element that OR OSHA must prove, or at least make a
prima facie showing of; see Skirvin v. Accident Prevention
Division, 32 Or App 109 (1978)], is that the employer had
knowledge of the violation.

"'Knowledge' means an awareness of the physical
condition which gives rise to the.violation. It does not mean an
awareness of the standards, or the probable consequences of the
violation. It means either actual knowledge of the violative
conditions, or constructive knowledge, the latter meaning that
the employer with the exercise of due diligence would have known
of the conditions." Employment Safety and Health Guide, Section
4074, "Employment Knowledge as a Violation Element," Commerce
Clearing House, page 1400 (1980); see ORS
656.086(2).

"The legislative history of the Act indicates an
intent not to relieve the employer of the general responsibility
of assuring compliance by his employees. Nothing in the Act,
however, makes an employer an insurer or guarantor of employee
compliance therewith at all times. The employer's duty, even
that under the general duty clause, must be one which is
achievable....We fail to see where in charging an employer with
a...violation because of an individual, single act of an
employee, of which the employer had no knowledge and which was
contrary to the employer's instructions, contributes to
achievement of the cooperation sought by the Congress.
Fundamental fairness would require that one charged with and
penalized for violation be shown to have caused, or at least to
have knowingly acquiesced in, that violation. Under our legal
system, to date at least, no man is held accountable, or subject
to fine, for the totally independent act of another....
...Not requiring the Secretary to establish that an employer
knew or should have known of the existence of an employee
violation would in effect make the employer strictly and
absolutely liable for all violations and would render
meaningless the statutory requirement for employee compliance.
29 U.S.C. 654(b).

To revive the citation...would be to subject an employer to a
standard of strict liability, under the special duty clause, for
deliberate employee misconduct. We do not find that result to be
within the intent of congress."
The evidentiary record contains persuasive evidence that Benham
and Richey had actual knowledge of working in close proximity to
the leaning hemlock. Specifically, Benham took control of the
"bug" and gave the final signal to the yarder to pull the
hemlock over with the skyline. (Exs. 719, and 23.) At this time,
both men had to have known of the leaning hemlock because of the
difficulty they had had in "breaking out the turn."
In reaching this conclusion, I believe these men felt protected
by a large tree standing slightly in front of them. They were
experienced loggers. I believe they simply misjudged the danger
of the situation.
OR OSHA's investigation notes present no evidence of the
workers' actual knowledge regarding the presence of snags in the
area. SCO Starks did not ask the employees if they had such
knowledge. This constitutes a significant oversight in the
investigation.
In fact, the employer's safety director, Mr. Wright, conducted
an investigation on behalf of the employer. He found the
employees were not aware of snags in the accident area. I accept
this as being true. It does not, however, negate the fact that
the leaning hemlock constituted a danger tree of which both
Benham and Richey were aware.
In addition, I conclude Benham and Richey should have known of
the pocket of snags around them. All members of the rigging crew
were experienced and skilled loggers. The crew had been working
at the same site for eight days before the accident. Danger
trees were present in the buffer zone on both sides of the
skyline. The deceased, as the hook tender, had anchored the
skyline in the buffer zone. In anchoring the skyline, one
specifically looks for danger trees. (Potter's testimony.) All
these factors should have put the entire crew, or, at least
Benham and Richey, on notice of the snags.
Therefore, Benham and Richey had actual knowledge, or should
have known, or the physical conditions giving rise to the
violation. This, however, does not end the inquiry regarding
"knowledge."
The issue becomes whether or not the employer is responsible
for the actions of its rigging crew supervisor, when those
actions violated the safety code. Specifically, is Benham's
knowledge, as a supervisor, imputed to his employer? Put another
way, did the employer know, or have reason to know, that the
rigging crew supervisor would act in violation of its
instructions to remain "constantly in the clear." In order to
decide this question, several factors must be addressed.
The employer's safety program is the central issue in this type
of case. If the employer's safety program i8 normally adequate
to prevent the type of employee misconduct in question, then it
is said the employer lacked knowledge of the violation; if it is
inadequate, then the employer is said to have "constructive"
knowledge. Employment Safety and Health Guide, Section 4074, at
1401.
I conclude the employer's safety program was adequate based on
the investigation notes of SCO Starks and the testimony of the
employer's safety director, Wright. First, there was no
indication, at least prior to hearing, that the safety program
was allegedly inadequate. As written by SCO Sparks in his
investigation notes:
"This firm submitted and received approval from the A.P.D. for
their A.O.L. job training guide. This training guide includes
all common hazards including danger trees and snags. Each
employee is indoctrinated with this training material prior to
his on site training. As stated elsewhere in this report,
employees are subjected to ongoing training during formal and
tailgate safety meetings.
A topic of a safety meeting held...before the accident,
addressed staying in the clear of danger trees." (Ex. 731.)
Benham and Richey attended a tailgate meeting on the morning of
the accident in which all employees were told to be "in the
clear" at all times. (Ex. 211.) Detailed Safety Inspection
Reports were filled out by assistant superintendent Jim Miley,
the highest ranking employee on the site, on March 24 and April
12, 1989. (Ex. 21.) Benham, the supervisor of the rigging crew,
held and documented crew safety meetings on March 4, 1988 and
April 4, 1988. (Ex. 217.) SCO Starks reported that Benham was
well trained and displayed a good safety attitude, a conclusion
with which Wright and fellow employees agreed. (Ex. 732.)
The employer's safety director first heard that the adequacy of
XL Timber's safety program was being questioned during field
safety supervisor Larrew's testimony at hearing. Nothing was
mentioned regarding a possible safety program inadequacy or
violation at the closing meeting which was held before the
Citation was issued; no safety program violation was cited by OR
OSHA.
There is evidence of a possible safety program inadequacy, but
I do not find this evidence persuasive. For example, the
employer was cited for the same safety code violation about nine
months before this accident. (Ex. 9.) Following that Citation,
the employer's safety director visited that site with Mr.
Morgan, one of XL Timber's owners. Morgan had stated that a
blatant violation of company policy had occurred. The supervisor
on that logging site was given a written reprimand and advised
that a repeat violation would result in his immediate
termination. (Ex. 731.) This "cuts both ways." It indicates a
violation had occurred, which weighs against the adequacy of the
company's safety program; it indicates that prompt remedial
action was taken by the highest officials in the company, which
weighs in favor of the company's internal safety enforcement and
concern .
Larrew testified that a record review showed the employer's
"lost work days" were over two times the industry average from
1986 through 1988. This may or may not be significant. Without
knowing the specifics of the causes for lost work days, I
decline to give this testimony significant probative weight. For
example, the lost work days could be from workers' compensation
claims totally unrelated to any safety deficiencies or
violations. Also, Larrew mentioned that Richey had barely
escaped injury on three occasions in the past. Again, I have no
way of knowing whether these situations involved any potential
safety code violations. I decline to give this vague testimony
probative weight.
Based on the above considerations, I conclude the employer's
safety program is normally adequate to prevent an occurrence of
this type of accident. Consequently, I decline to impute the
rigging crew supervisor's knowledge to the employer.
OR OSHA has failed to meet its burden of proving actual or
constructive knowledge by the employer. This is an essential
element of OR OSHA's case against the employer and results in a
failure of proof. Therefore, the Citation will be vacated.
It might be helpful to briefly mention the employer's
affirmative defense. The employer contends that the rigging crew
supervisor's act of giving the final go-ahead signal constituted
an isolated event of employee misconduct. The single act of an
employee, made without the employer' 8 knowledge and running
contrary to instructions, is not chargeable to the employer. See
Brennan v. OSHRC (Alsea Lumber), 511 Fed. 2d 1139 (9th Cir.
1975). This is simply another way of approaching the issue of
whether supervisory knowledge should be imputed to the employer.
Employment Safety and Health Guide, Section 4074, at 1401.
Essentially the same evidence, as discussed in the constructive
knowledge portion of the opinion, applies in the employee
misconduct affirmative defense. By "misconduct" it should be
made clear that OR OSHA does not contend Benham's actions were a
willful or intentional violation of the safety code. Rather, OR
OSHA contends those actions were either careless or accidental.
As stated by SCO Starks: "This was an isolated event and a
direct violation of co. policy." (Ex. 733.)
In short, it is OR OSHA's own investigation report, rather than
independent evidence from the insurer, which is most persuasive
in establishing the employer's affirmative defense. I am not
implying that Starks in any way undermined OR OSHA's case. I am
stating, however, that the facts he reported constitute a legal
defense to the Citation.
The employer advanced another argument which I reject.
Specifically, the employer alleges that the present
administration of OR OSHA has an unfair bias against any
employer, especially in situations involving injury and death.
The employer contends, and the testimony of SCO Starks and field
safety supervisor Larrew, support a finding that OR OSHA's
safety compliance officers, and others in the enforcement chain
of command, are under pressure to issue citations.
In finding that the present administration has stepped up OR
OSHA's enforcement of safety code violations through increased
pressure to issue citations, I make no judgment that such action
is bad. OR OSHA is charged with minimizing injuries and death in
the workplace. As long as the underlying facts and law support
the issuance of a citation, increased awareness of safety
considerations will permeate the workplace through stepped-up
enforcement.
If citations are not factually and legally proven, as is the
case here, the employer has the opportunity to overturn the
citation through the hearing process. While judging whether a
violation occurred in this case is before me, judging OR OSHA's
enforcement policy is not, unless that policy has somehow
tainted the testimony of OR OSHA employees. I specifically find
that SCO Starks and field safety supervisor Larrew gave credible
testimony. SCO Starks' testimony, potentially against his
interest as a longtime OR OSHA employee, showed integrity and
courage.
Having vacated the Citation on the merits, it follows that an
analysis of the penalty provision of the Citation is moot.
Because considerable time in the hearing was devoted to OR
OSHA's directives by which the penalty was calculated, I offer
dicta on the subject.
OR OSHA memos, dated November 1, 1984 and December 28, 1988
(Exs. 301 & 2), are contrary to Oregon Administrative Rule
437-46-135, which directs the safety compliance officer (SCO) to
make probability ratings based on a consideration of several
factors. The memos invalidly attempt to take this duty away from
the SCO and to eliminate the probability rating entirely, if the
violation involves injury or death. I believe OAR 437-46-135
calls for a prospective probability rating rather than the
elimination of a probability rating by hindsight.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED as follows: Citation No.
S838304189, issued June 21, 1989, alleging a violation of OAR
437-80-105(1)(a), is vacated in its entirety.
NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court of Appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS
183.482.
Entered at Salem, Oregon OCT. 5 1990
WORKERS' COMPENSATION BOARD
Bruce D. Holtan Referee